COMMENTARY: Terrorized by the Supreme Court

Critics are afraid of dismantling our Constitution through Judicial Activism, NOT having the power to free innocent men. Critics are afraid of internationalizing our courts and the transition to socialism led by an elitist group of intellectuals who know better than the citizens what is and is not just. When the Supreme Court makes decisions that have this impact on the Constitution, a constitutional referendum needs to be administered instead of the judgement of nine people.

Soxcomm, Your suggestion that there be a public referendum when the courts declare a legislative enactment to be unconstitutional is novel. But it is not what the founders had in mind. As you know, the three branches are to serve as checks on each other. The legislative branch reflects the will of the people (especially the House, whose entire membership must stand for election every two years). But the judiciary was to be a step removed from the heat of the moment and the immediate will of the people. Thus, the Supreme Court justices (and all other so-called “Article III” judges, such as the circuit court and district court judges) are appointed for life. The judiciary is to make decisions based on principle. And that is what the Boumediene court did. You would say that makes them "elitist;" I would say that they were fulfilling their constitutional role.

What an absolutely stupid article! While the decision applies directly only to the current Gitmo detainees, the logic (if there is any) of the precedent implies that any individual captured by or in the custody of the US military has immediate access to a civilian court hearing. Anyone unappreciative of the burdens that a civilian, as opposed to military, proceeding imposes on our armed forces in a time of conflict should not be accorded a column to display his ignorance.

What principle of the U.S. Constitution applies to non U.S. citizens? Are we now the world court? Is this the Nuremberg trials? What global entity has determined the U.S. right of habeas corpus to be universal.

"Critics of this decision are terrified that the courts will have the power to free innocent men", I don't think so. Critics understand the significance of the Supreme Court overstepping it's bounds.

Soxconn, You ask “What principle of the U.S. Constitution applies to non U.S. citizens?” Of course you know that non U.S. citizens who are in the U.S. have many of the protections of the U.S. Constitution. (For example, the 14th Amendment provides that States shall not “deprive any PERSON of life, liberty or the property, without due process of law; nor deny to any PERSON within its jurisdiction the equal protection of the laws.”) Thus, if a non-U.S. citizen traveling in the U.S. were arrested, she would have the same rights to a hearing as a U.S. citizen. I assume, then, that you are asking ‘”What principle of the U.S. Constitution applies to non-U.S. citizens when they are outside the United States?” If you reread the Boumediene decision, you will see that the majority wrestles with the question of “extra-territorial” application of habeas corpus and finds no historical precedent useful in the present case. The dissenters would draw a bright line and say, if someone is outside of the sovereign territory of the U.S., then he or she does not have a right to habeas corpus under the U.S. Constitution. A case can be made for that position; I assume you would support that position. But the majority found that position unsatisfactory in this case, where the detainees are not being given the rights of POWs, have been held for up to 6 years (thus far), have been transported far away from the battlefield, and have been placed in a territory beyond the reach of any other country’s laws (I assume that you do not think that the detainees should have the benefit of the laws of Cuba). This article is simply pointing out in some detail that the Boumediene decision does not have some of the outlandish consequences that some commentators have worried about. It does not, as you wonder, determine the right of habeas corpus to be “universal.”